Saturday, June 14, 2003

Publicola has this post highlighting this article in the Richmond Times-Dispatch about the use by law enforcement of data from the "Smart Tags" used to electronically pay tolls (at least on the Downtown Expressway and Powhite Parkway around Richmond).

Of course, they've got cameras on those roads, too, I suspect.

The next thing will be defense lawyers in criminal cases and lawyers in civil cases trying to get discovery of that government data.

Usually when I am on the Downtown Expressway I'm not concerned so much with anyone knowing I was there as wishing I had a few more quarters.

The Louisville Courier-Journal cites a range of differing views on mountaintop mining in this article describing today's "Flyover Festival" in Southeastern Kentucky, which features small plane flights over mountaintop mining areas. The range of views includes those of some environmentalists, who apparently are opposed to all means of mining (and possibly all means of generating power).

I enjoy the mountains, but I don't understand people who say, like a man quoted in the article, that coal is "not good for the environment, it's not good for the economy, it's not good for the community and it's not good for people." People who talk like that seem to be saying life would be better if we all lived in the cold and the dark, since half or more of the power generated in the U.S. comes from coal, if I understand this data from FERC.

According to this AP report, the History Channel is working on a study of Virginia's DNA database of felons and violent criminals, including the case of Timothy Spencer, who "was the first defendant in a capital murder case in the nation to be identified, prosecuted and convicted pretty much solely on DNA," according to Paul Ferrara, head of the Virginia Division of Forensic Science.

The AP reports here that an archaeologist with the United States Forest Service is claiming "[i]n a whistleblower action filed Friday . . . that the agency has illegally ignored the true nature of the region's forests in an effort to justify increased logging and prescribed burning on 3 million acres in Alabama, Georgia, Tennessee, South Carolina and Virginia."

R.H. Melton of the Washington Post describes in this item how, in the recent Republican primaries involving three Virginia senators, the incumbents "were accused, variously, of promoting sodomy, abortion, gun restrictions, higher taxes, general knavery and the destruction of the American family as we know it. And that was just the mail campaign. . . . There was a certain low comedy quality to much of the campaigning, as incumbents seemed very put out by defending their records (of all things!) and challengers hurt their own upstart causes with personal attacks that seemed designed more to deflate voter turnout than to actually rally supporters to the polls." Melton concludes, "[A]s a harbinger of the edgy politics to come -- and a nostalgic reminder of a more statesmanlike past -- the primary election season was one for the record books, and not for Republicans only."

The Virginia Department of Transportation (VDOT) is being urged to endorse a plan to build separate lanes for trucks and cars on Interstate 81, which runs 400 miles in Western Virginia from Bristol, Tennessee, to Martinsburg, West Virginia, in order to secure $800 million from the federal government, according to this report in the Richmond Times-Dispatch.

Congressman Bob Goodlatte from Roanoke is quoted as saying that "Congress needs to hear from VDOT soon because Rep. Don Young, R-Alaska, chairman of the House Transportation Committee, is willing to work to earmark money for the I-81 project, but only if it includes the separate lanes."

A spokesman for one of the companies with competing bids for the project was quoted as saying, ""The focus shouldn't be on getting money from Congress. The focus should be on doing the right thing to I-81."

As reported in this story in the Richmond Times-Dispatch, Richmond Circuit Court Judge Beverly Snukals refused to dismiss the criminal charges against Richmond Assessor James R. Vinson, despite his counsel's argument that correcting tax assessments is what Vinson was supposed to do.

The article notes: "Deputy Commonwealth's Attorney Anthony G. Spencer responded Vinson still had a conflict of interest because he ordered a subordinate to lower his assessment.

Vinson bought a home in the Westover Hills West neighborhood in June 2002 for $307,500. Six months later, it was assessed at $364,200. The assessment was reduced to $320,500 after Vinson complained."

In addition, the judge decided to see the jury list before making a ruling on whether to move the trial out of Richmond. Vinson's counsel "has asked for the trial to be moved. He contended that publicity about the case and the displeasure of city residents about the recent sharp increase in assessments will make it impossible to seat an impartial jury in Richmond."

From the Pittsburgh Post-Gazette: "But what little sense I have is of the common variety, and that tells me this lawsuit against Boston College, Miami, and the Atlantic Coast Conference has little merit. And, even though it appears to be working, that still doesn't mean it has merit. . . . This lawsuit is working, primarily because the chancellors/presidents of the ACC don't have the stomach for a nasty court battle. And the Big East is certainly worth saving. But even a great end doesn't always justify the means by which it was accomplished."

From the Charlotte Observer: "Florida State's expansion position since late 2001, that it couldn't promise to stay in a nine-team ACC, was not relayed to ACC commissioner John Swofford by then-FSU president Sandy D'Alemberte, contrary to a report in Thursday's Observer. . . . According to sources, Florida State's position was conveyed by FSU athletics director Dave Hart. 'At approximately the time line suggested in The Observer story, I expressed to the commissioner the fact that I was very concerned about the possibility of the ACC being left behind if serious expansion discussions were not held,' Hart said in the e-mail. 'Our president was never involved in that discussion, and I certainly would not characterize my statement as a threat, nor do I believe it was taken as a threat by the ACC.'"

From Steve Hummer of the Atlanta Journal-Constitution: "At this stage of the ordeal, it's difficult to even choose sides between the ACC and the Big East. A monkeypox upon both their houses."

From the Raleigh News-Observer: "The current impasse must be frustrating for [ACC Commissioner John] Swofford. After all, his former school -- Carolina -- has been the most reluctant of the holdouts. It was in Chapel Hill that Swofford's reputation as an effective AD reached the point that he became a popular choice to succeed [Gene] Corrigan. Should this vote fail, Swofford might be inclined to resign within a year or so to seek another job. He would have no trouble landing one."

From the Charleston, WV, Daily Mail: "Legal counsel for the Atlantic Coast Conference announced late Friday it believes the lawsuit filed last week by five Big East schools is without merit. . . . 'No matter how many press conferences are called, press releases issued, transparent actions taken or motions filed, plaintiffs' litigation tactics will not affect the final decision by the Council of Presidents. Regardless of whether the ACC elects to expand or whether any institution elects to associate itself with the ACC, this lawsuit will have no bearing on that process or its timing.' . . . Florida State President T.I. Wetherell was quoted Friday in the Tallahassee Democrat, 'The ACC will expand by the end of next week.'"

From the Middletown, CT, Press: "What had only been whispered about behind closed doors before Friday is combining all of the football schools from the Big East with the ACC to create an East Coast superconference."

From the South Florida Sun-Sentinel: "Florida State President T.K. Wetherell said Friday that he was 'pretty positive' the Atlantic Coast Conference will vote to add new members Miami, Boston College and Syracuse. 'I believe when the final gun sounds you will see that there will be enough votes to do the [expansion],' Wetherell said speaking in Tallahassee, 'and I think it will be because the presidents and everybody want it to happen, not because some politician weighed into it.'"

From the AP, reported in the Charleston, WV, Gazette: "West Virginia Athletic Director Ed Pastilong said he does not believe the Atlantic Coast Conference presidents will approve the annexation of three Big East schools. 'I’ve said that my personal feeling was that we had a 50-50 chance' of preserving the Big East, Pastilong said Thursday. 'But I’m now thinking of moving that to 60-40.'"

Oddly enough, Garry Maddox is also a sponsor of (and contestant in) barbecue contests in Philadelphia, as shown on the Food Channel, including this one coming up later in June.

(I must confess that most of the MLB games I've seen were in Veterans' Stadium, with Maddox in the OF, in the years 1977-1983. He was smooth in the field - long legs, huge strides, all of it needed when Luzinski was in left.)

Friday, June 13, 2003

This article says PC manufacturers are waiting for an expedited ruling from the Fourth Circuit in the Microsoft-Sun case, expecting to start shipping machines with Java-enabled software once the Court rules.

Former American Bar Association president and Florida State University president emeritus Talbot "Sandy" D'Alemberte denies that he ever threatened to have Florida State pull out of the Atlantic Coast Conference if there was no expansion, as reported here and in this article, which says "[r]eading the story was nearly enough to unravel D'Alemberte's bow tie as he ate breakfast." D'Alemberte's alleged threats, which he denies, have been cited as one basis for the desire of the ACC to expand to include Miami and other Big East schools.

I might have guessed that the people were mainly Republicans over in Scott County, home place of Attorney General Kilgore, Delegate Kilgore, and soon-to-be Judge Kilgore, but this item from the Roanoke paper (via Opinion Journal's Best of the Web) suggests a diversity of views, calling for the formation of "a platoon of elders to help protect our homeland" from President Bush, headquartered in Dungannon, which is a ways off the four-lane there in Scott County. I know a few "seniors" over in Gate City, I'll have to start asking them whether they have joined the platoon.

I enjoyed greatly the David Brooks book, Bobos in Paradise, and this article spotted by Instapundit. The concept is a dead-on characterization of many people I know, lawyers in particular - but not those from right around here. There are no Bobos in far Southwest Virginia, just a few wannabes. We have no Pottery Barn and the nearest Barnes & Noble with a Starbucks is in Johnson City. Everyone gets their appliances at Sears. Sure, we get a few L.L. Bean catalogs, but it's hard to be a Bobo via mail order.

Legal Theory Blog has this post evaluating the arguments for against judges with "mediocre" intellects.

The discussion reminds me of a story I once heard told from the pulpit at Holy Trinity Church, in Georgetown (the church where I was married). The homilist was some fellow from the Church of England, with a syrupy British accent and bone-dry sense of humor. (They had many interesting guest speakers.) He related the story of a young priest assigned to a class of teenagers, who made the mistake one day of opening the floor for questions, and the first question was this: "why are the clergy so mediocre?" He thought a moment, and answered, "because we have only the laity to pick from."

It seems almost miraculous to me that judges are not more mediocre, given the role of politics, the financial sacrifices, the soul-baring required for confirmation, and yet, as Judge Posner wrote in the second edition of this book, "I may be living in the golden age of the federal appellate judiciary. There may never have been a time when so large a fraction of federal judges were outstanding." (And if you don't believe that, read How Appealing every day for a while.)

"Pittsylvania County Commonwealth’s Attorney David Grimes is refusing to comment on a “show cause” ruling issued June 6 against him and assistant prosecutor Bryan Haskins.
Pittsylvania County Circuit Court Judge Charles Strauss has ordered Grimes and Haskins to explain why they should not be found in contempt of court for requesting jury trials in several criminal cases.
The order contends the prosecutors asked for the jury trials on May 23, the day the cases were scheduled for bench trials by Circuit Court Judge B.A. Davis III.
In addition, the show cause order states, in part, prosecutors knew “the request, if granted, would unduly delay the trial or otherwise impede justice and was untimely for the sole stated purpose of avoiding bench trials by the Honorable B.A. Davis III.”
Grimes and Haskins also are being asked to explain why they released witnesses from subpoenas issued by the court for attendance on May 23 “without authorization or the consent of the circuit court.”
Grimes has declined to comment on whether prosecutors were trying to avoid having trials heard by Davis, a retired judge who occasionally sits on the bench."

There's something odd about all that, and part of it is that the prosecutors would let some kind of feud develop between themselves and the judge, any judge. If I make one judge mad, that's bad, even though I might not see him again for another few months, but prosecutors see the same judges every month, if not every day.

Jerry Radcliffe of the Daily Progress says "[t]here is so much bullspit being spread from Virginia political circles that the whole involvement of our elected leaders and Virginia Tech president Charles Steger reeks of hypocrisy" (can you say that in the newspaper?) and that notwithstanding Steger's public declaration that "“If an offer [to join the ACC] came today, we would not accept it,” to the contrary, if such an offer came, "He’d break his ankles trying to get to Greensboro as fast as his legs would carry him." Ratcliffe concludes that "What the ACC should do is laugh in the face of the lawsuit and the silly suggestion that all the presidents from both conferences should sit down face-to-face and hash things out, then show some solidarity and vote 9-0 to expand, give out the invitations, bring the Hurricanes, the Golden Eagles and the Orangemen aboard and live happily ever after."

Jerry was there when I played at being a sportswriter for the "other" student newspaper (now defunct) in the mid-1980s, but I never knew him to get so excited. On the other hand, if George Welsh was still there, he would be throwing his hat on the ground pretty much every few hours as this up-and-down story continues.

As reported here in the Kingsport Times, Virginia's Attorney General Jerry Kilgore has joined with the attorneys general of every other state in supporting the certiorari petition to have the Ninth Circuit's ruling on the Pledge of Allegiance overturned. The article notes that there is also Virginia case involving the Pledge now pending before the Fourth Circuit.

On Wednesday, as reported here and here, the U.S. Senate approved Ronnie Greer of Greeneville for the United States District Court for the Eastern District of Tennessee, replacing Judge Thomas Hull, and this just two months after he was nominated.

As reported here in the Daily Progress, via Virginia Lawyers Weekly, the county attorney in Albemarle County (which surrounds Charlottesville) has concluded that the school board's policy prohibiting student-on-student harassment based on sexual orientation is lawful, notwithstanding Virginia AG Kilgore's opinion that a similar policy applicable to both students and employees was beyond a county's power. I'd say the county attorney is probably correct - or at least there are some cases out there that suggest that failure to protect students from harassment based on sexual orientation can be a denial of equal protection. See Flores v. Morgan Hill Unified School Dist., 324 F.3d 1130 (9th Cir. 2003).

Thursday, June 12, 2003

This AP report describes how Virginia Attorney General Jerry Kilgore has jumped into the lawsuit brought by Virginia Tech and others in Connecticut to prevent Miami and Boston College from leaving the Big East to join the University of Virginia and others in the Atlantic Coast Conference, joining the attorneys general of Connecticut and West Virginia on the pleadings in the case.

What may be the boldest aspect of this is that I don't know that Jerry Kilgore is otherwise likely to have much in common with the attorneys general from West Virginia or Connecticut.

The Connecticut AG has this press release titled "Big East Files Motion For Expedited Discovery" on his website.

The Roanoke Times reports here that Senators George Allen and John Warner affirmed their support for the nomination of Glen Conrad to serve as United States District Court judge for the Western District of Virginia, filling the vacancy created when Judge James Turk took senior status.

The article goes on to name some of those interest in filling the magistrate judge position that Judge Conrad is leaving - "Lawyers who confirmed that they will apply, or are considering applying, include: James Creekmore of Roanoke; Kevin W. Holt of Roanoke; Karen Peters, an administrative law judge who previously worked as a federal prosecutor in Roanoke; Norman Kinnier of Lynchburg; Thomas Leggette of Roanoke; and Jonathan Rogers of Roanoke."

Jimmy and Beth and Tommy and Ronnie and Tony and Bo and Ricky and Ike and Porkey and Dusty and Mickey and Pete and Donnie and Charlie and Bobby and Roscoe and Jimbo and Wakie and Jack and Eddie and Buddy - those are all nicknames (in quotation marks) of candidates for sheriffs in Virginia this fall, according to the useful and searchable candidate list maintained here on the website of the Virginia State Board of Elections.

Gregory Peck died last night. As Bill Hobbs writes here, "There is not an attorney practicing today who doesn't, at least once in his or her career, try to channel Atticus Finch."

In 1940, Gregory Peck was one of the players at Abingdon's Barter Theatre. He came back to town in 1998, as described in this account, worth reading all the way to the end:

"Gregory Peck is coming home to a tiny theater in the Virginia mountains where he learned to act and accepted food for pay.
The Barter Theatre in Abingdon considers Peck -- who also drove a truck when the cast hit the road -- its most famous alumnus. He returns Monday to discuss the stage and film career that took root here.
"I've said this before, but it's the most valuable experience that I've ever had," Peck said. "Getting those shows on, and trucking the scenery around and setting up the lights -- you were part of real theater for the summer. It was good groundwork and good training."
The red-brick theater 370 miles southwest of Washington takes its name from the hard times in which it was founded. During the Depression, the theater would barter tickets for food.
The list of stars who honed their skills at the Barter is impressive. Their black-and-white publicity photos line the lobby walls.
Ernest Borgnine worked as a carpenter and eventually got a small part. Ned Beatty stayed for more than six years. Patricia Neal got her start here, as did Hume Cronyn, Kevin Spacey and Frances Fisher.
Playwrights Noel Coward, Tennessee Williams and Thornton Wilder accepted Virginia ham as royalty payments. George Bernard Shaw bartered for spinach because he was a vegetarian.
Peck was 24 when he performed in five plays in the summer of 1940, two years before he got his break on Broadway and three years before his film debut in "Days of Glory."
The admission price was 40 cents or its equivalent in food. A pig was worth a season pass."

How Appealing published this eyewitness account of the Sixth Circuit sitting en banc, which noted the age difference between the new judges on the outside and the older judges in the middle.

Earlier, How Appealing linked to this Washington Post story about the "continuing battle between liberal and conservative judges" related to the charges and findings about the conduct of the Chief Judge.

It reminds me of my wife's comments on the appearance of the Virginia Supreme Court, which she described after watching an oral argument session (in 1991) as "two ladies, a black guy, and four senior citizens." (The four white-haired gentlemen have since retired to status as senior justices, the "guy" is now the Chief Justice, and there are now three women on the Court.) My wife also pointed out how much she liked the earrings worn by one of the justices, which is surely not a thought often expressed in the history of the Commonwealth.

UPDATE - I certainly don't mean to suggest that my wife's comment was anything like that of Bill Pryor.

In Bell v. Ozmint, the Fourth Circuit in an opinion by Judge Motz joined by Chief Judge Wilkins and Judge Wilkinson denied post-conviction relief to a man sentenced to death for murder in South Carolina, rejected his various claims, including the claim that the sequestered jurors partied with the law enforcement officers who were guarding them.

In United States v. Deaton, the Fourth Circuit in an opinion by Judge Michael, joined by Chief Judge Wilkins and Judge Luttig, affirmed the judgement against landowners who tried to improve the drainage on their 12-acre parcel of land situated some 32 miles from the Chesapeake Bay, where the evidence showed that the flow made its way from the ditch to the Bay, upholding that the government was acting within its jurisdiction under the Clean Water Act in treating the property as "wetlands," and affirming the trial court's remediation order which required the defendants to fill in the ditch.

In Svezzese v. Duratek, Inc., the Fourth Circuit in an per curiam opinion for the panel of Judges Luttig, Motz, and Shedd affirmed the dismissal of securities fraud claims brought against a company engaged in waste processing, where the company had erred in its estimation of its costs, which turned out to be higher than expected, leading to a restatement of its financial position. The Court concluded that the complaint failed to meet the heightened pleading requirement as to motive, concluding that "[n]one of these allegations evidence fraudulent intent or recklessness sufficient to survive a motion to dismiss."

In Maltas v. Maltas, the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Motz, and Gregory reversed the summary judgment for the defendants in a dispute between a father and son over money for a house, while noting that "[w]hen this Court is asked to resolve appeals such as this, the difficulty lies not in the legal questions but in our recognition that resolving the legal issues does little to heal the emotional wounds created by the circumstances surrounding the lawsuit itself."

In U.S. v. Gilmore, on June 11, Judge Jones of the W.D. Va. granted the government's motion in limine, allowing the use statements of some unavailable witnesses, and denied a defense motion for a separate trial, in the case of defendants Charles Gilmore and Walter Church, accused of various federal crimes in connection with the 1989 murders of three people in Pocahontas, Virginia.

The Danville paper has this report on a school counselor who sued the founder of the Wellspring Academy, "a Christian boarding school for at-risk adolescent and teenage boys," alleging that the founder made various defamatory statements blaming the counselor for the school's closing.

A conference will be held later this month in Middlesboro, KY, called "Melungeon Women: Filling the Gap," as reported here.

My dad thinks that some of his cousins are Melungeons, and used to read everything he could find on them and send articles to me from time to time, but now the literature is so extensive it's not possible to stay informed. I myself am apparently not a Melungeon, but you never know. One theory of Melungeons named "Miner" is that they were Portuguese Jews who came to America from Barbados, as stated here by Dr. Brent Kennedy.

David Brinkley died today, as reported here, here, and many other places.

Two of my favorite things about David Brinkley are this great book, in which the tales include that of an unnamed young reporter up from North Carolina looking for a place to live in D.C., who passed on an offer from a potential landlady of lower rent if he slept in her room instead of the guest room, and also a dinner speech story I heard Brinkley relate (for the 1,000th time, I'm sure) to a convention of dentists gathered at the Shoreham on Connecticut Avenue in Washington, D.C. (I was there as a guest of my father-in-law).

The story was about how Brinkley said he was always confused for his broadcast partner Chet Huntley, and sometimes he was too polite to correct people who misidentified him. In particular, he recalled one woman who caught up with him in a airport, calling out, "Aren't you Chet Huntley?" Brinkley played along and chatted with her for a bit. Eventually the woman told him, "I have only one question for you, Mr. Huntley. How in the world do you put up with that idiot Brinkley?"

Roanoke attorney John Rocovich, the head of Virginia Tech's Board of Visitors, declared in a public forum yesterday in Roanoke that he thinks the law suit brought by Virginia Tech and others to stop the departure of Miami and Boston College from the Big East to the Atlantic Coast Conference is likely to succeed, according to this report in the Roanoke Times. (It would be news if he thought otherwise.)

Wednesday, June 11, 2003

This interesting Knight-Ridder report relates that ACC expansion was the result of threats by Florida State, beginning under the regime of former ABA president Sandy D'Alemberte while he was head of FSU, but now three schools - Virginia, Duke, and Carolina - are ready to vote against expansion, leaving the process so thoroughly derailed that a letter from the Big East schools asking the ACC to avoid a "rush to judgment" made them laugh at the ACC office, which apparently does not know when if ever an expansion vote will take place.

This AP report also describes the two days of fruitless talks among the ACC representatives.

I am dumbfounded by this report from Michigan of a state law employment discrimination case where the appeals court held that "[c]onduct or communication that is gender-based, but is not sexual in nature, does not constitute sexual harassment."

What can this possibly mean? I thought that harassment was actionable as employment discrimination only where it was gender-based. Maybe they have some different kind of laws in Michigan.

It makes me think of a discussion I had about the Virginia Supreme Court's Mitchem v. Counts case, some years ago, where it struck me that the majority was saying "we're not talking about sex, we're talking about fornication" in their effort to distinguish the anti-Lockhart statute passed by the General Assembly to prohibit wrongful discharge claims based on sex discrimination.

One of the few reporters I once knew, living what appears to be a pretty good life, is Scott Michaux of the Augusta Chronicle, who filed this story on golfer Davis Love III from the U.S. Open outside of Chicago.

Findlaw has posted here the complaint in the Connecticut lawsuit filed by Virginia Tech and others to prevent the departure of Miami and Boston College from the Big East to the Atlantic Coast Conference.

I don't know the pleading rules in Connecticut, but somehow I don't think this is a "short and plain statement" of the claim, nor does it follow the spirit of Virginia Rule 1:4(j), which says that "Brevity is enjoined as the outstanding characteristic of good pleading." (40 page pleadings would be unusually lengthy out here in the hills.)

Since Denise Howell wrote here in March that "Steve also keeps us up to date on things agricultural," I've been wondering when I will say something agricultural, but at last I am in fact working on an ag law project at this very moment, which led me to discover and ponder the following statement from the Virginia Supreme Court: "This court will take judicial cognizance of the fact that it is the nature of a turkey to chase a grasshopper, or other bugs, or insects, without paying much attention to fences or boundary lines." Tate v. Ogg, 170 Va. 95, 106-107, 195 S.E. 496, 501 (1938).

There it is, for all of you litigating turkey trespass cases, there is no need for actual proof (at least not in Virginia) of just how "much attention" turkeys pay to boundary lines when chasing grasshoppers, or other bugs, or even insects.

In Skipper v. Giant Food, Inc., the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Wilkinson and Luttig affirmed the district court's denial of class certification for the employment discrimination claims of a group of warehouse workers, and also affirmed summary judgment on the merits of their racial harassment and disparate treatment claims.

In John Doe 2 v. The Associated Press, the Fourth Circuit in a decision by Judge Wilkinson joined by Judge Shedd and Senior Judge Hamilton, applying South Carolina law, affirmed the dismissal on the pleadings of the plaintiff's claims of fraud, invasion of privacy, and reckless or intentional infliction of emotional distress against the Associated Press for identifying him as the victim of sexual abuse.

In Superformance International, Inc. v. Hartford Cas. Ins. Co., the Fourth Circuit in an opinion by Judge Niemeyer joined by Judges Widener and Wilkinson upheld summary judgment for a liability insurer on its refusal to provide coverage for trademark infringement claims against its insured, applying Virginia law, where the policy excluded "injury arising out of infringement of 'trademark, trade name, service mark or other designation of origin or authenticity' and the Court concluded that all of the claims "are varieties of trademark claims protected by the Lanham Act and State analogues."

In Bane v. Va. Dept. of Corrections, Judge Turk dismissed plaintiff's claims under Title II of the Americans with Disabilities Act against the Commonwealth's Department of Corrections, concluding that the Eleventh Amendment barred the relief sought and the remedy created by the Title II of the ADA was beyond the powers of Congress under section 5 of the Fourteenth Amendment.

Via "Best of the Web," the Petersburg, Virginia, paper reports here that the local school system is considering "a proposal to remove reading from the list of must-pass classes as a grade promotion requirement."

This is the root of the mandatory testing phenomenon today - whether it is the SOLs or the mult-state bar exam, if the students can pass even that one test, then at least they learned something, which is better than nothing, or what a kid who can't read will get out of 12 years spent not reading in the public schools.

Tuesday, June 10, 2003

In Boyd v. County of Henrico, a split panel of the Virginia Court of Appeals in an opinion by Chief Judge Fitzpatrick overturned convictions for public nudity and "aiding and abetting" public nudity, concluding that the county ordinance was unconstitutionally vague, where "neither the Commonwealth's Attorney nor the police were able to clearly delineate what would constitute a violation of the ordinance or at least what they would prosecute as a violation" and "the legislative intent underlying the ordinance was to prevent urinating in public and similar problems."

Judge Kelsey dissented, in an opinion that includes this paragraph:

"It has been the traditional view that whatever natural law construct exists to support the "right to appear au naturel at home," that right is "relinquished when one sets foot outside." Richards v. Thurston, 424 F.2d 1281, 1285 (1st Cir. 1970). Even so, in the "outer ambit" of constitutional theory, the erotic speech component of a particular form of public nakedness -- nude dancing at strip clubs -- receives "some measure" of First Amendment protection. Erie v. Pap's A.M., 529 U.S. 277, 285, 289 (2000); see also Barnes, 501 U.S. at 566. The right, however, is hardly a robust one. At best, it receives a "diminished form of protection under the First Amendment," Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702, 707 (7th Cir. 2003), because it involves the "barest minimum of protected expression," Barnes, 501 U.S. at 565. Put another way, the right is only "marginally" within the "outer perimeters" of the First Amendment. Barnes, 501 U.S. at 566."

According to this State Board of Elections site, when last I checked, among the Republicans, Senators Chichester and Norment swamped their more conservative opponents, while Senator Potts held on barely over Tate by 106 votes (out of almost 15,000 cast), and Rollison lost in the House. Among the Democrats, former Circuit Court Judge Verbena Askew is losing by less than 300 votes in Newport News (out of almost 13,000 counted so far), and Onzlee Ware won in Roanoke. If these names mean anything to you, you must be a semi-junkie like me.

This means I guess that the farther right-wingers had no great victories in the most-watched Senate campaigns, and former Judge Askew will apparently not get to sit along side those who voted her out of the courthouse (although they are still counting votes in that race.)

UPDATE - I guess this item came too late for the Askew campaign; she claimed that her legal background would make her a better legislator than her non-lawyer opponent.

With apologies to this Volokh conspirator, on the lesser and greater meanings, spellings, and pronounciations of the term "Hobbesian choice," I cannot get out of my mind one of my favorite Howard Bashman posts, which says "a Hobbesian choice is the kind of choice that Hobbes faced when playing 'Calvinball' --a game with 'rules' that essentially provide that there are no rules."

An example of "Calvinball" is here, although the adventures of Spaceman Spiff (such as this one) are also Hobbesian in some sense.

Since it only took me ten years to learn of this meaning of Hobbesean, I predict that as long as Hobbes is studied, likewise Calvin will be studied.

Univ Atty has this post on this story in USA Today, the AP has this report, the Hartford Courant has this report , the Charlotte Observer has this report, the Miami Herald has this report, and the Palm Beach Post has this report, all saying that Duke and the University of North Carolina are reconsidering their willingness to go along with the expansion of the Atlantic Coast Conference to include Miami and others.

The AP reports here that Virginia's Governor Warner is asking for mediation in place of litigation over the proposed expansion of the ACC.

UPDATE - This report from Tuesday night says there was no vote on expansion in today's ACC conference call, "increasing speculation that the addition of Miami, Boston College and Syracuse might be in some trouble."

This Bacon's Rebellion commentary, titled "Virginia Is Slipping in Broadband Deployment," suggests that the administration of Governor Warner despite his high-tech background is not doing enough to advance the cause of increasing the availability of broadband in Virginia.

Monday, June 09, 2003

The Lynch mines across the mountain from SW VA in Kentucky, originally owned by United States Steel Corporation, and most owned by subsidiaries of Arch Coal, are the subject of this opinion from the Sixth Circuit, which affirms the trial court's decision to grant summary judgment against the United Mine Workers of America on their claims that the last seller violated the successorship clause of the 1998 NBCWA by not imposing successorship obligations on the last buyer. The language of the contract requires the employer to make sure that all of its "operations" are sold without a proviso that the buyer will recognize the union. The Sixth Circuit concluded, like others before it, that closed mines were not "operations" covered by the successorship clause.

One of the cases cited by the union in their argument was International Union, UMWA v. Eastover Mining Co., 603 F. Supp. 1038 (W.D. Va. 1985), an opinion by Judge Williams which has since been overruled by the Fourth Circuit, as it allowed a breach of collecting bargaining agreement against a non-party to the agreement, which made it a popular decision with the UMWA.

The AP has this report on the eBay patent infringement case, including this quote from Greg Stillman of Hunton & Williams, who represented the plaintiff: "There were times we were mightily discouraged by the vehemence of their defense. . . . The vigor with which they asserted that this was a frivolous claim would make anyone wonder if maybe we were missing something."

As reported here, the Tennessee legislature has approved NASCAR license plates, which will benefit the Tennessee State Museum and Speedway Childrens' Charities.

I wonder whether, if the final design has the 3 car on it or the 8 car, then advocates of 2, 4, 5, 6, 24, and 88 might bring a lawsuit against state officials under the First Amendment claiming some kind of viewpoint discrimination. (It's just one of those racin' deals to refer to the race teams by number - the hard-luck 4 car is Southwest Virginia's own Morgan-McClure Kodak race team.)

This article points out the trouble with looking at racial attitudes from the 1960s as an indicator of a person's character - there are some good people who believe now what they did not believe then, that racism is morally wrong, and their ability to get past their own ignorance and bigotry is evidence of character.

The civil rights protests in Danville in 1963 are described here, here, here, and here.

This article from the Bluefield paper described the increased penalties for drunk driving and other new Virginia laws related to driving that take effect next month, including "a mandatory, minimum five days in jail for a [drunk driving' conviction with a passenger in the vehicle who is 17 years of age or younger."

Today in Desert Palace, Inc. v. Costa, the unanimous Supreme Court rejected the holding of Fuller v. Phipps, 67 F.3d 1137 (4th Cir. 1995), concluding that the statutory response to Price Waterhouse v. Hopkins, 490 U.S.228 (1989), allowing employers to assert a mixed motive defense only as to plaintiff's remedy, does not require "direct evidence" of discrimination but may also apply in cases where plaintiff demonstrates discrimination was a motive for the adverse employment action.

The Fuller opinion makes sense, in that most of the time, the case is not about whether there were mixed motives, but the jury must decide whether the employer's motive was the illegal one claimed by the plaintiff or the legal ones claimed by the defendant. Giving a mixed motive instruction where neither side is claiming there were mixed motives seems somehow unjust in possibly both directions - but it happens all the time in cases under Mt. Healthy, so what else is new.

I recently had occasion in this case to try to explain the difference between the Title VII standard and the Mt. Healthy test, in a case where the plaintiff claimed she was transferred because of race, age, and politics. The magistrate judge said, aren't they really the same? My answer was and is no, but today's ruling will make the difference even more difficult to explain - the Mt. Healthy defense applies in Title VII cases, except the plaintiff's initial burden is lower in Title VII cases, and the defense in Title VII cases goes only to remedy (or something like that). (The magistrate judge did not buy my arguments in their entirety, but the district court judge did.)

The Indiana Law Blog has this post with interesting links to information about the Big East's lawsuit to enjoin the departure of Miami and Boston College to the ACC - includings links here and here to the language of the Complaint.

Sunday, June 08, 2003

Reading these blogs brings me back to thoughts from I don't know when, and one of them is what is a federal judge supposed to do when relying on the "text" of the Constitution (or a statute) and the text says other unspecified things are covered - this post from the Volokh Conspiracy says "Where I most strongly disagree with judicial conservatives is over their stance on unenumerated rights. If it is improper 'judicial activism' to ignore the text, structure, and original meaning of the Constitution, then when assessing the proper scope of federal power it is improper to ignore the Ninth Amendment, which says: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

This kind of question was at the front of my brain not too long ago when I was arguing a case where the issue was, of all the things, the meaning of the words "other utilities." That "other" means something, even in a Virginia statute defining the powers of local governments in the face of the Dillon Rule, and one would suspect it means something in the Ninth Amendment. Of course, the most famous exposition on the Ninth Amendment, indeed, the only one I know, and the only thing I know about Justice Goldberg, is his opinion in the case of Griswold v. Connecticut. (I can't recall what if anything Professor Jeffries suggested if one of the multiple choice answers on the multi-state was "the Ninth Amendment.")

Poynter Online cites this Richmond Times-Dispatch article about the practice of some doctors and other specialists in hospitals who bill consumers for "the balance" left over after their health insurance has paid, when the hospitals but not the doctors are participating providers with the insurer.

It's a Southwest Virginia/Northeast Tennessee "thing," too - you can't tell whether your anesthesiologist or radiologist or pathologist or whatnot is going to charge you beyond what your insurance will pay, unless you check them out separately. I thought this thing was everywhere.

This article in the Richmond paper says that "Virginians will find out Tuesday how far to the right Republican voters are willing to go." Likewise, this AP report surveys the scene from the weekend before the primaries, which also notes that "[t]he challengers are bound by unconditional resolve to block any type of tax increase and cut taxes if possible. They also want abortion outlawed and oppose restrictions to owning and carrying firearms."

The Richmond Times has this story describing how many high school graduates from Buchanan County (as elsewhere in Southwest Virginia) go off to college and never return, for lack of opportunities in the local economy.

In this story in the Bluefield paper, the U.S. Attorney for the Southern District of West Virginia offers his opinion that drugs are the root cause of almost all crime. A drug enforcement agent added, speaking of drug users, that "These people are lazy and are taking shortcuts . . . . We just can't let these people take shortcuts in life and shortchange the average citizens that want to go to work, have a job, and see their kids go to college."

The Roanoke Times offers this editorial saying that the Commonwealth needs to spend more money to make sure that no one is unfairly deprived of a diploma next year when passing the Standards of Learning tests becomes a prerequisite for graduation from high school in Virginia. (No surprise there - the Roanoke Times always seems to want higher taxes and more government spending (on anything but football), which is maybe another reason to oppose relaxation of the FCC's media ownership rules - to avoid a monopoly of bad ideas, as this Roanoke.com columnist points out.)

This commentary suggests in a bit more scientific manner that Virginia needs a plan to deal with those who flunk the SOLs.

Mike Urbanski of Woods Rogers is among those quoted in this Roanoke Times article handicapping the prospects for success in the Virginia Tech lawsuit to stop Miami and Boston College from leaving the Big East for the Atlantic Coast Conference. He was quoted as saying, "This is a lawsuit that cannot be sneezed at."

The article explains that Connecticut was viewed as legally the most favorable forum for the suit, and the forum farthest from the ACC, and the place where taxpayers have invested millions to expand the Huskies' football stadium. (All of that discussion makes me think the defendants will look to remove the case to federal case, and file a motion for transfer to some place like the Southern District of Florida.) The Hartford paper has this column which says the lawsuit might stop ACC expansion, even if it is not of great legal merit. The same paper has this profile on Jeffrey Mishkin, the Skadden Arps lawyer who is representing Tech and the others in the Connecticut court.

I read with interest this post and this article on the "privileges and immunities" clause. This being the time of year when a law grad's fancy turns to the bar exam, including one or more bloggers, I recall that the rule of thumb from the Con Law segment of my bar review course (offered I think by Professor John Jeffries from U.Va.) is that the privileges and immunities clause was ALWAYS THE WRONG ANSWER on the multiple choice, multi-state exam.